{
  "id": 8600465,
  "name": "STATE v. HATTIE GAVIN",
  "name_abbreviation": "State v. Gavin",
  "decision_date": "1950-06-09",
  "docket_number": "",
  "first_page": "323",
  "last_page": "324",
  "citations": [
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      "type": "official",
      "cite": "232 N.C. 323"
    }
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
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    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state_regional",
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    {
      "cite": "228 N.C. 491",
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      "category": "reporters:state_regional",
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      "cite": "191 N.C. 297",
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    {
      "cite": "205 N.C. 459",
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    {
      "cite": "220 N.C. 241",
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    {
      "cite": "228 N.C. 159",
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  "analysis": {
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    "char_count": 4401,
    "ocr_confidence": 0.454,
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  "last_updated": "2023-07-14T20:42:59.145817+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. HATTIE GAVIN."
    ],
    "opinions": [
      {
        "text": "EkviN, J.\nThe testimony of the State\u2019s witness to the effect that two years before the trial she read newspaper articles stating that the accused had performed abortions on two other women was highly prejudicial hearsay, and ought to have been excluded. Randle v. Grady, 228 N.C. 159, 45 S.E. 2d 35; Teague v. Wilson, 220 N.C. 241, 17 S.E. 2d 9; Greene v. Carroll, 205 N.C. 459, 111 S.E. 627; Young v. Stewart, 191 N.C. 297, 131 S.E. 735.\nWe are convinced that the prejudicial effect of the incompetent evidence was not removed from the minds of the jurors by the statement of the trial judge that he was \u201cgoing to strike it,\u201d or by his direction to the jurors not to consider it. This opinion is not based solely upon the theory so-ably expounded by Mr.. Justice Winborne in the recent case of S. v. Choate, 228 N.C. 491, 46 S.E. 2d 476. It rests in substantial measure upon the significant fact that subsequent to its attempted withdrawal, the trial court recalled the illegal testimony to the minds of the jurors with much vividness by eliciting from the State\u2019s witness evidence that she visited the accused because of \u201ca news item\u201d she had read, and by instructing the jury that the State contended that such witness \u201chad read some item in the newspaper, relating to Hattie Gavin, and that in consequence of that she came to her home.\u201d\nFor these reasons, the conviction and judgment are vacated, and the defendant is granted a\nNew trial.",
        "type": "majority",
        "author": "EkviN, J."
      }
    ],
    "attorneys": [
      "'\u2019Attorney-General McMullcm and Assistant Attorney-General Rhodes for the State.",
      "E. Walker Stevens and Rivers D. Johnson for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE v. HATTIE GAVIN.\n(Filed 9 June, 1950.)\n1. Abortion \u00a7 9a\u2014\nIn a prosecution for abortion, testimony of the woman that she went to defendant by reason of newspaper articles stating that defendant had performed abortions, is held incompetent as hearsay and extremely prejudicial to defendant, entitling her to a new trial.\n2. Criminal Law \u00a7 48d\u2014\nThe court\u2019s action in striking incompetent evidence and instructing the jury not to consider it cannot be held to have rendered its admission harmless when the court thereafter by its own question elicits the same incompetent testimony from the witness and refers to such testimony in it's charge.\nAppeal by defendant from FrizzeXle, J., and a jury, in criminal action tried in the Superior Court of DupliN.\nTbe defendant was tried at tbe May Special Term, 1949, of tbe Supe--rior Court of Duplin County upon a two-count indictment. ' Tbe first-count charged ber with using drugs and instruments to destroy an unborn-child in violation of G.S. 14-44, and the second count charged her with-using drugs and instruments to produce the miscarriage of a pregnant woman contrary to G.S. 14-45.\nNotwithstanding timely objections and exceptions by the accused, the woman on whom the abortion was alleged to have been performed was permitted to testify in behalf of the State as follows :\n\u201cQ. Where did you get the information that Hattie Gavin -would perform an abortion?\n\u201cA. I was home two summers ago on my vacation, and I read it in the papers.\n\u201cQ. Read what in the papers?\n\u201cA. About a girl and her.\n\u201cQ. About what ?\n\u201cA. About she had performed one on a lady, and it was in the paper! Then I read about another girl in Greensboro.\u201d :\u25a0\nAfter receiving this evidence, tbe trial court made this statement to counsel and jurors: \u201cWell, I think it is inadmissible, gentlemen. I am-going to strike it. Gentlemen of the jury, don\u2019t consider it.\u201d\nImmediately afterwards, the trial court propounded this inquiry to the woman: \u201cYou went to her (i.e., the defendant) by reason of a news item you saw?\u201d She replied: \u201cYes, sir.\u201d The accused noted an exception to the question and answer.\nThe charge to the jury included this instruction: \u201cTbe State contends it has offered evidence tending to show that sometime theretofore she had read, some item in the newspapers, relating to Hattie Garin, and that in consequence of that, she came to her home.\u201d\nThe jury found the defendant guilty on the first count, and not guilty on the second count. Prayer for judgment was continued from time to time until the January Term, 1950, of the Superior Court-of-Duplin County, when the defendant was sentenced to imprisonment in the State Prison. She thereupon excepted to th,e judgment and appealed, assigning the admission of the testimony set out above and the foregoing portion of the charge as error.\n'\u2019Attorney-General McMullcm and Assistant Attorney-General Rhodes for the State.\nE. Walker Stevens and Rivers D. Johnson for defendant."
  },
  "file_name": "0323-01",
  "first_page_order": 371,
  "last_page_order": 372
}